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Mouton v. Thomas11/6/2002
REVERSED AND REMANDED FOR TRIAL.
In this personal injury case, defendant, Allison Thomas, appeals the judgment of the trial court which awarded the plaintiff, Kevin Mouton, $13,122.06 in past medical expenses, $5,070.00 in future medical expenses, and $35,000.00 in general damages for injuries he sustained to the head and face after a patron of the nightclub struck him with a broken bottle. Final judgment was rendered pursuant to a confirmation of default based on Thomas' failure to answer Mouton's petition in a timely manner. The trial court found that Thomas, as a business owner, failed to protect patrons of his establishment from reasonably foreseeable criminal acts of third parties.
We disagree. Evidence was not sufficient to support a finding that Thomas owed a duty to Mouton to protect him from the criminal misconduct of a third party. For the following reasons, we find that the plaintiff did not make a prima facie showing of defendant's liability based on Mouton's failure to prove Thomas' ownership of the club. As a result, the trial court committed error in confirming the preliminary default.
I. ISSUE
We shall consider whether, under the present circumstances of this proceeding, Mouton may hold Thomas liable, as the owner of the nightclub, for injuries he sustained at the hands of a third-party patron, Robert Boxie.
II. FACTS AND PROCEDURAL HISTORY
On October 22, 2000, Kevin Mouton was struck in the face and head with a broken bottle by Robert Boxie at Big Al's Hideaway Club in Carencro, Louisiana. Mouton was shooting pool at the nightclub with his brother-in-law, Marlon Roy, and Roy's cousin from Atlanta. Prior to the incident, Boxie and Roy's cousin had an argument. The cousin called Roy over, and Mouton followed. Mouton attempted to stop the argument. Believing that the argument had ceased, Mouton separated from the others. Mouton then felt a tap on his shoulder. When he turned around, Boxie hit Mouton across the face with a bottle.
As a result of the injury , Mouton was transported to Lafayette General Medical Center by ambulance. Mouton had to undergo several hours of plastic surgery to repair cuts in and about his face as well as a severely split upper and lower lip. After surgery, Mouton was informed by his physician to expect permanent scarring and disfigurement from the injury.
On May 11, 2001, Mouton filed a petition for damages against Thomas, individually and d/b/a Big Al's Hideaway Club, and Boxie for his personal injuries. Mouton alleged in his petition that Thomas owed a duty to him as a customer and/or invitee of the nightclub to exercise reasonable care in maintaining a safe environment free from reasonably foreseeable criminal acts of third parties. On June 26, 2001, Mouton moved for a preliminary default based on Thomas' and Boxie's failure to respond to his pleading. Preliminary default was entered against both defendants on June 27, 2001. The default judgment was confirmed and entered as final judgment solely against Thomas, and Mouton was awarded $53,192.06 plus legal interest and costs on August 29, 2001.
In response to the final judgment, Thomas filed an answer denying all allegations in Mouton's petition on September 10, 2001. On that same day, Thomas also filed a motion for new trial. According to Thomas, he failed to respond to the petition because he was waiting for a response from his insurance company concerning the claim to establish a defense. He asserted that he was not aware that adverse proceedings would take place before he received correspondence from his insurance company. On December 18, 2001, Thomas' motion for new trial was denied. Thomas now app
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